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Five-year-old Matteo Wright (Matteo) fell 12 to 15 feet to his death after his father, plaintiff James Gill Wright (Wright), suspended him by a homemade harness attached to a gantry crane for an "impromptu ride" and the crane's steel cable broke. The accident happened inside a hangar in McClellan Business Park, LLC (McClellan). The hangar was being subleased to the Aerospace Museum of California Foundation, Inc. (the museum) to restore airplanes for display and construct other exhibits for the museum. Wright was a volunteer at the museum who had taken Matteo to the hangar to work on an exhibit Wright had built. The crane did not have a lock preventing its use, and Wright did not need the crane for his exhibit.

Wright sued the museum and McClellan for negligence in allowing him access to the crane and negligence in failing to maintain the crane. He alleged causes of action for wrongful death, negligent infliction of emotional distress, and premises liability. The trial court granted summary judgment in favor of the museum and McClellan. The court reasoned Wright's conduct was "highly unusual" and "extraordinary," constituting a superseding cause of the injury. Wright appeals from the resulting judgment. Agreeing with the trial court, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On review of a summary judgment in the defendants' favor, we independently examine the record to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) In performing this de novo review, we must "view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing h[is] evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Id. at p. 768.) Employing these standards, the following facts appear from the record:

Wright took Matteo to the hangar on December 3, 2006, and waited there until independent contractor Derrel Fleener, who had been granted key access to the hangar to work on his "'Bots in Space'" exhibit, unlocked the doors. Wright rolled his wooden aircraft carrier exhibit into the hangar and began working on it with Matteo.

Inside the hangar was a gantry crane. It was an electric crane equipped with a safety limit device designed to function as an emergency stop of the motor preventing upward travel of the hook/load block. The crane was for lifting equipment. The crane's manual "caution[ed]" the crane was "not designed for lifting, lowering or transporting people and must not be used so." An electrical lockout box had been installed in 2003 at the request of McClellan, but there was no lock placed on the box. Wright did not need the crane for his exhibit.

Matteo became interested in the crane. Fleener explained to Matteo how it worked. Fleener had Matteo interlock his hands and hold onto the hook of the crane and lifted Matteo "slightly off the ground." Matteo then used the crane to lift his father one to two inches off the ground.

Wanting Matteo to have "an experience," Wright decided to give his son an "impromptu" ride on the crane. Wright went to his car, retrieved some of his rock climbing equipment, and used it to make a harness for Matteo. Wright put the harness on Matteo and attached his son by the harness to the hook of the crane with some rope. Using the crane, Wright hoisted his son upward 12 to 15 feet. There was a loud pop. The safety limit device had malfunctioned, causing the crane's steel cable to break. Matteo fell to the ground, unconscious. He died two days later.

DISCUSSION

Wright contends the court erred in finding his conduct was a superseding cause precluding the museum's and McClellan's liability because they had a "duty to protect against the unauthorized or negligent use of the crane" and his conduct of "lifting his son on a crane" was not "so unusual and extraordinary as to be unforeseeable as a matter of law." We disagree because in the words of the trial court, Wright's conduct was "highly unusual and an extraordinary response that [it] was the superseding cause of the injury."

We begin by explaining the defense of superseding cause. "[T]he defense of 'superseding cause,' . . . absolves a tortfeasor, even though his conduct was a substantial contributing factor, when an independent event intervenes in the chain of causation, producing harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold [original tortfeasor] responsible." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573, fn. 9.)

As this court has explained, "the doctrine requires more than mere negligence on the part of the intervening actor. '[T]he fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if a reasonable man knowing the situation existing when the act of the third person is done would not regard it as highly extraordinary that the third person so acted or the act is a normal response to a situation created by the defendant's conduct and the manner in which the intervening act is done is not extraordinarily negligent.'" (Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 863.) "Third party negligence which is the immediate cause of an injury may be viewed as a superseding cause when it is so highly extraordinary as to be unforeseeable." (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18.) "'The foreseeability required is of the risk of harm, not of the particular intervening act.'" (Ibid.)

To apply the foregoing analysis, we begin by identifying the alleged negligence of the museum and McClellan and the risk of harm from that negligence. The alleged negligence was failure to prevent unauthorized use of the crane and failure to maintain the crane's limit safety device in working order. The risk of harm from these acts was that an unauthorized person would operate the crane and a load the crane was carrying would fall and injure somebody on the ground. That is not the harm that came to pass. The harm here was the death of a person suspended 12 to 15 feet from the crane for recreation. This different type of harm was caused by Wright "after several intervening acts." (Premo v. Grigg, supra, 237 Cal.App.2d at p. 198.) Wright fashioned a harness from rock climbing gear he had in his car, strapped the harness to his son, attached his son to the hook of the crane with some rope, and then used the crane as a recreational device to suspend his son 12 to 15 feet in the air.

Wright argues his conduct in hoisting his son on the crane was foreseeable for at least three reasons: (1) the California Division of Occupational Safety and Health has a safety order prohibiting employees from "rid[ing] on loads, hooks, or slings of any derrick, hoist, or crane" (Cal. Code Regs., tit. 8, § 4995); (2) the crane's manual "caution[ed]" the crane was "not designed for lifting, lowering or transporting people and must not be used so"; and (3) other people (i.e., Fleener and Matteo) had used the crane to hoist people on the day of the accident. Using these three examples, Wright argues that if it were unforeseeable and extraordinary to use cranes to lift people, these warnings would not be necessary and others beside Wright would not have done so.

The problem with Wright's argument is one of degree. Even if it were foreseeable the crane would be used to lift a human being, Wright's conduct "produc[ed] harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen . . . ." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 573, fn. 9.) The facts of Wright's own example bear this out. Fleener used the crane to lift Matteo only "slightly off the ground." Similarly, Matteo used the crane to lift his father one to two inches off the ground. Had the crane's safety limit device malfunctioned at either of these points, death was not foreseeable. And death was not the result. It was only Wright's "'highly extraordinary'" conduct (Doupnik v. General Motors Corp., supra, 225 Cal.App.3d at p. 863) of using the crane as a recreational device to suspend his son 12 to 15 feet in the air that "produc[ed] harm of a kind and degree so far beyond the risk [the museum and McClellan] should have foreseen that the law deems it unfair to hold [them] responsible" (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 573, fn. 9). Said in another way, Wright's actions were not a "'normal response'" to the situation the museum and McClellan created. (Doupnik v. General Motors Corp., supra, 225 Cal.App.3d at p. 863.)

At oral argument, Wright contended the superseding cause doctrine is abrogated by "the existence of 'special circumstances' as it relates to industrial equipment [the crane], which create a greater potential of foreseeable risk and more serious injury, [and] could be deemed to impose upon defendants a legal duty to plaintiffs." In support of this proposition, Wright cites Carrera v. Maurice J. Sopp & Son (2009) 177 Cal.App.4th 366 (Carrera). Carrera does not stand for such a broad proposition.

In Carrera, a thief stole a tow truck from the defendant's open service center that had been parked with the key in the ignition and drove it on nearby sidewalks, killing and injuring numerous people waiting to board a bus. (Carrera, supra, 177 Cal.App.4th at pp. 369, 372.) The service center was located in an area with "very high incidence of crime, including thefts and burglaries." (Id. at p. 372.) The plaintiffs sued for wrongful death, negligence, and loss of consortium. (Id. at p. 369.) The trial court granted the defendant's motion for summary judgment, reasoning there were no special circumstances present to impose on the defendant a duty to protect third parties from the negligent driving of the thief. (Id. at p. 376.) The appellate court reversed, reasoning, "the trial court erred in finding an absence of special circumstances." (Id. at p. 385.) "[W]hen a defendant owes a duty to protect third parties from injuries caused by the intentional misconduct of a thief, such misconduct does not constitute a superseding cause of harm. (Id. at p. 384.) There, "the risk created expose[d] the plaintiff to danger from criminal conduct, [so the] criminal conduct [wa]s not automatically a superseding cause." (Id. at pp. 384-385.)

Nothing in Carrera abrogates the superseding cause doctrine here. Rather, as Carrera itself notes, application of the special circumstances doctrine requires examination of foreseeability. (Carrera, supra, 177 Cal.App.4th at pp. 383-384.) As we have already explained, even if it were foreseeable the crane would be used to lift a human being, Wright's conduct "produc[ed] harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen . . . ." (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 573, fn. 9.)

DISPOSITION

The judgment is affirmed. The museum and McClellan are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

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